Freedom of Information (FOI) in Procurement

Freedom of information legislation gives any person, not just procurement participants, the right to request documents from public authorities. In the procurement context, FOI is a powerful secondary transparency tool: where debriefing obligations and disclosure of scoring rights leave gaps, FOI can fill them, enabling bidders, journalists, civil society, and the public to scrutinise how public contracts are awarded.

What is freedom of information in procurement?

FOI requests in the procurement context typically seek:

• Evaluation score sheets and evaluator notes.
• Pre-market engagement records and supplier meeting notes.
• Correspondence between the contracting authority and the winning supplier during the process.
• Business cases and approval documents for a contract.
• Contract terms and pricing schedules after award.
• Records of contract performance and any variations.

The applicable legislation differs by country. In the UK, the Freedom of Information Act 2000 (FOIA) applies to most public authorities. In the EU, Regulation 1049/2001 governs access to EU institutions' documents. Member states have their own national FOI laws (for example, France's loi CADA, Germany's Informationsfreiheitsgesetz, and Sweden's Freedom of the Press Act, one of the oldest transparency laws in the world).

The right of access is subject to exemptions, most importantly:

Commercial confidentiality. Information whose disclosure would prejudice the commercial interests of a third party (typically the winning supplier) may be withheld. However, this exemption cannot be used as a blanket veto. Authorities must apply a public interest test in many jurisdictions, and the threshold for establishing genuine commercial harm is high.

Personal data. Names, contact details, and other personal information are subject to data protection law and may be redacted.

Deliberative processes. Pre-decisional advice and internal deliberations may attract a qualified exemption during the period before the decision is finalised, though post-award, this exemption typically falls away.

The relationship between FOI and procurement-specific transparency rights is complementary. Bidders should use the procurement-specific routes first (debriefing, assessment summary) and treat FOI as the escalation route when those routes are insufficient.

Why it matters for bidders

FOI is a powerful tool in situations where the formal debriefing process has not yielded sufficient information. It can be used to:

• Obtain evaluation sheets where a debriefing was inadequate.
• Access a winning competitor's technical bid where it has been disclosed to the authority and is not genuinely commercially sensitive.
• Understand the internal approval process for a direct award that bypassed competition.
• Investigate patterns of contracting with a particular supplier across multiple procurements.

Suppliers who are systematic FOI users develop a significant intelligence advantage in competitive markets.

Example

A Finnish consulting company loses a major central government advisory contract and receives an assessment summary that is brief and uninformative. It submits an FOI request for the full evaluation score sheets and evaluator comments. The authority discloses the score sheets with some redactions but provides enough detail to show that the evaluation was conducted by a single evaluator rather than the panel described in the tender documents, a procedural breach that the company uses as the basis for a formal complaint to the national procurement oversight body.

Frequently Asked Questions

How quickly must a public authority respond to an FOI request?

Response times vary by jurisdiction. In the UK under FOIA, the standard deadline is 20 working days. EU institutions respond within 15 working days under Regulation 1049/2001, with an extension of 15 further days for complex requests. National FOI laws across Europe vary between 15 and 30 days.

Can a contracting authority withhold an entire contract on commercial confidentiality grounds?

Generally not. In most European jurisdictions, the core terms of a public contract (scope, value, duration, parties) are not commercially sensitive and must be made available, either proactively through a contract register or on request. Pricing schedules may sometimes attract commercial exemptions, but only where genuine harm to competition can be demonstrated.

Does the winning supplier have any say over what is disclosed?

In many jurisdictions, contracting authorities must consult the winning supplier before disclosing information provided by that supplier (particularly technical proposals), and the supplier may object to disclosure on commercial confidentiality grounds. However, the ultimate decision rests with the contracting authority (and, on appeal, the information commissioner or court), not the supplier.